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GRAYSON DIMICELI ET AL. v. TOWN

OF CHESHIRE

(AC 36747)

Alvord, Prescott and Bear, Js.

Argued October 15, 2015—officially released January 5, 2016

(Appeal from Superior Court, judicial district of New

Haven, B. Fischer, J.)

Benjamin H. Pomerantz, for the appellant (named

plaintiff).

Thomas R. Gerarde, with whom, on the brief, was

Katherine E. Rule, for the appellee (defendant).
Opinion

PRESCOTT, J. In this personal injury action, the

plaintiff Grayson DiMiceli, through his parents and next

friends, the plaintiffs Eric DiMiceli and Sabrina DiMiceli, appeals from the summary judgment rendered by

the trial court in favor of the defendant, the town of

Cheshire.1 Grayson allegedly was injured while playing

on a seesaw at a playground operated and maintained by

the defendant. The plaintiffs’ complaint initially alleged

only negligence by the defendant and a derivative claim

for medical expenses, but later was amended to include

a public nuisance count. The plaintiffs claim that the

court improperly determined that the defendant was

entitled to judgment as a matter of law because (1)

their negligence count was barred by the doctrine of

governmental immunity, and (2) the amended count

alleging a public nuisance was barred by the applicable

statute of limitations and did not relate back to the

negligence count. We disagree and, accordingly, affirm

the judgment of the trial court.

The record reveals the following undisputed facts

and procedural history. On June 13, 2009, Grayson, who

was seven years old at that time, was playing with

another child at the Quinnipiac Recreation Area, a public park that is owned and operated by the defendant.

Grayson and the other child were using a seesaw, when,

without warning, the other child jumped off the equipment, causing Grayson’s seat to crash to the ground.

Grayson suffered injuries as a result of the incident,

including spinal compression fractures.

The plaintiffs commenced this action against the

defendant on April 26, 2011.2 The initial complaint contained two counts, the first alleging negligence on behalf

of Grayson, and the second asserting a derivative claim

for medical expenses on behalf of the parents individually.3 According to the plaintiffs, the defendant had been

negligent because it had failed to embed partial car

tires or other shock absorbing material in the ground

directly beneath the seesaw seats or to use such material on the underside of the seats themselves, had failed

to ensure that there were sufficient wood chips or other

loose filled material covering the ground around the

seesaws or had failed to replace the old fashioned seesaw with a newer, spring-loaded version. The case was

assigned for a jury trial to begin on September 24, 2013.

On May 7, 2013, the defendant filed a motion for permission to file a summary judgment motion in accordance

with Practice Book § 17-44. The court granted the

motion on May 20, 2013, absent objection, and the summary judgment motion and supporting memorandum of

law attached to the motion for permission were deemed

filed as of that date.

The plaintiffs were granted two extensions of time

in which to respond to the motion for summary judg-
ment. On October 16, 2013, the plaintiffs filed a request

for leave to amend the complaint, seeking to add new

factual allegations to the existing negligence count and

to add a new count sounding in public nuisance. The

proposed second amended complaint was attached to

the motion. The defendant objected to the request for

leave to amend, arguing that the proposed amendment

was unseasonable and would prejudice the defendant

because it had already filed its motion for summary

judgment. The court scheduled argument on the motion

for leave to amend for November 25, 2013. In the

interim, the plaintiffs filed a response to the defendant’s

objection to the motion for leave to amend as well as

a supplemental response to the defendant’s motion for

summary judgment.

Following the November 25, 2013 hearing, the court

granted the plaintiffs’ motion for leave to amend its

complaint and accepted the attached amended complaint as having been filed on that date. The defendant

filed an answer with special defenses to the new operative complaint on December 5, 2013, in which it asserted

a statute of limitations special defense directed at the

nuisance count. The defendant later filed a supplemental memorandum of law in support of its motion for

summary judgment, which included new arguments

addressing the propriety of the nuisance count. The

plaintiffs also filed a supplemental brief in opposition

to summary judgment.

On March 13, 2014, the court issued a decision rendering summary judgment in favor of the defendant on all

counts of the operative complaint. The court concluded

that the defendant was entitled to judgment as a matter

of law on the negligence count because governmental

immunity, as codified in General Statutes § 52-557n (a)

(2) (B), shields municipalities from liability for negligent discretionary acts, and the court determined as a

matter of law that the maintenance of the seesaw on

which Grayson was injured involved a discretionary

function. The court further concluded with respect to

the public nuisance count that it had not been filed

within the applicable statute of limitations and did not

relate back to the original negligence count because

the allegations in support of the public nuisance count

were critically different from those underlying the negligence count. Because neither the negligence count nor

the nuisance count was viable, the court also rendered

judgment with respect to the parents’ derivative claim

for medical expenses.4 The plaintiffs filed a motion for

reconsideration and reargument, which the court

denied. This appeal followed.

‘‘Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the

absence of any genuine issue [of] material facts which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law . . . and the party

opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact. . . . [I]ssue-finding, rather than

issue-determination, is the key to the procedure. . . .

[T]he trial court does not sit as the trier of fact when

ruling on a motion for summary judgment. . . . [Its]

function is not to decide issues of material fact, but

rather to determine whether any such issues exist. . . .

Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must

decide whether the court’s conclusions were legally

and logically correct and find support in the record.’’

(Internal quotation marks omitted.) Barbee v. Sysco

Connecticut, LLC, 156 Conn. App. 813, 817–18, 114 A.3d

944 (2015).

I

We turn first to the plaintiffs’ claim that the court

improperly rendered summary judgment on the negligence count on the basis of its determination thatrecovery for negligence was barred by the doctrine of

governmental immunity. In support of this claim, the

plaintiffs first argue that a genuine issue of material

fact exists as to whether the defendant’s duty to inspect

and maintain the playground and seesaw was ministerial or discretionary in nature, and that the existence

of such a disputed issue of fact should have precluded

the court from granting summary judgment. The plaintiffs further argue that it is contrary to public policy to

grant governmental immunity if a municipality claims

to have no policies, standards, or guidelines in place

to ensure that its playgrounds are safe for children. We

are not persuaded by the plaintiffs’ first argument and

decline to considerthe second because it was notraised

to or decided by the trial court.

A

The plaintiffs first argue that a genuine issue of material fact exists with respect to whether the defendant’s

duty to inspect and maintain the playground and seesaw

was ministerial or discretionary in nature. We are not

persuaded.

We begin by setting forth the well settled law of this

state regarding the liability of municipalities and their

agents.According to our SupremeCourt, ‘‘[a] municipality itself was generally immune from liability for its

tortious acts at common law . . . . [The court has]

also recognized, however, that governmental immunity

may be abrogated by statute. . . . General Statutes
§ 52-557n (a) (1) provides in relevant part: Except as

otherwise provided by law, a political subdivision of the

state shall be liable for damages to person or property

caused by: (A) The negligent acts or omissions of such

political subdivision or any employee, officer or agent

thereof acting within the scope of his employment or

official duties . . . . [Our Supreme Court] previously

[has] concluded that [t]his language clearly and

expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from

suit for torts committed by their employees and

agents. . . .

5

‘‘Subdivision (2) of § 52-557n (a) lists two exceptions

to the statutory abrogation of governmental immunity.

The exception relevant to this appeal provides: Except

as otherwise provided by law, a political subdivision

of the state shall not be liable for damages to person

or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or

impliedly granted by law.’’ (Citations omitted; footnote

added; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47–48,

881 A.2d 194 (2005). The statute, thus, distinguishes

between discretionary acts and those that are ministerial in nature, with liability generally attaching to a

municipality only for negligently performed ministerial

acts, not for negligently performed discretionary acts.

See Coley v. Hartford, 140 Conn. App. 315, 322, 59 A.3d

811 (2013), aff’d, 312 Conn. 150, 95 A.3d 480 (2014).

‘‘The hallmark of a discretionary act is that it requires

the exercise of judgment. . . . In contrast, [m]inisterial

refers to a duty which is to be performed in a prescribed

manner without the exercise of judgment or discretion.

. . . In order to create a ministerial duty, there must

be a city charter provision, ordinance, regulation, rule,

policy, or any other directive [compelling a municipal

employee] to [act] in any prescribed manner.’’ (Citation

omitted; internal quotation marks omitted.) Id., 323.

‘‘In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered

discretionary acts entitled to governmental immunity.

. . . A municipality necessarily makes discretionary

policy decisions with respect to the timing, frequency,

method and extent of inspections, maintenance and

repairs.’’ (Citations omitted.) Grignano v. Milford, 106

Conn. App. 648, 656, 943 A.2d 507 (2008). ‘‘Although

the determination of whether official acts or omissions

are ministerial or discretionary is normally a question

of fact for the fact finder . . . there are cases where

it is apparent from the complaint.’’ (Citation omitted.)

Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623,

628, 749 A.2d 630 (2000). ‘‘[W]hether an act or omission

is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant
to § 52-557n (a) (2) (B), turns on the character of the

act or omission complained of in the complaint. . . .

Accordingly, where it is apparent from the complaint

that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment,

and thus, necessarily were discretionary in nature, summary judgment is proper.’’ (Emphasis in original; internal quotation marks omitted.) Grignano v. Milford,

supra, 655.

In their complaint, the plaintiffs allege that the defendant failed to maintain the park and the seesaw in

a safe condition and that ‘‘[t]he duties owed by the

defendant were ministerial in nature.’’ The plaintiffs

allege three possible sources forthe defendant’s alleged

ministerial duties: the United States Consumer Product

Safety Commission’s Handbook for Public Playground

Safety (CPSC standards); chapter 11, article I, § 11-1

of the Cheshire Code of Ordinances (ordinance); and

internal standards established by the defendant’s Parks

and Recreation Department. We agree with the well

reasoned analysis set forth by the trial court in its memorandum of decision, in which it aptly concludes that

none of the sources cited by the plaintiffs imposed a

ministerial duty with respect to how the defendant was

supposed to inspect and maintain its playgrounds and

playground equipment.

The trial court reasoned as follows: ‘‘With respect to

the CPSC standards, the plaintiff[s] [point] to General

Statutes § 21a-12a. Section 21a-12a provides in relevant

part: ‘The Commissioner of Consumer Protection shall

adopt regulations . . . to develop standards for playground equipment . . . . Such regulations shall be

equivalent to the standards established by the Handbook for Public Playground Safety produced by the

United States Product Safety Commission.’ The plaintiff[s] [argue] that this statute imposes a ministerial duty

on the defendant to maintain the seesaw in accord

with the industry standards set forth by CPSC, that the

defendant failed to do so, and that the defendant is

therefore liable in negligence.

‘‘Section 21a-12a instructs the Commissioner of Consumer Protection to adopt regulations. [Section 21a12a-2 of the Regulations of Connecticut State Agencies]

provides: ‘The guidelines for playground equipment

adopted by the United States Consumer Product Safety

Commission in its Handbook for Public Playground

Safety are adopted, and herein incorporated by reference, as voluntary guidelines for playground equipment in this state.’ . . . Contrary to the plaintiff[s’]

argument, the CPSC standards do not impose binding

ministerial duties on the defendant but instead are available to municipalities for guidance. Accordingly, the

CPSC standards do not and did not create ministerial

duties on the defendant.

‘‘With respect to the ordinance, the plaintiff[s] [argue]
that a sentence in [the ordinance] creates a ministerial

duty. [The ordinance] states: ‘[t]he town’s parks and

recreational facilities shall be maintained for the residents of Cheshire and guests in their company.’ The

plaintiff[s] essentially [argue] that the use of the imperative ‘shall’ indicates that the ordinance requires the

defendant to maintain the park and the seesaw. The

court disagrees with [that] interpretation. . . . [I]n

order for a duty to be considered ministerial, it must

be ‘performed in a prescribed manner without the exercise of judgment or discretion.’ . . . The ordinance

does not prescribe any particular manner of performance; it simply states that recreational facilities shall

be maintained. . . . Absent such prescription, the ordinance does not and did not impose a ministerial duty

on the defendant. . . .

‘‘With respect . . . to the internal standards of the

Parks and Recreation Department, the plaintiff[s]

[point] to the deposition testimony of Robert Ceccolini,

Director of the Cheshire Parks and Recreation Department. The plaintiff[s] [argue] that Ceccolini’s testimony

undercuts the defendant’s contention that maintenance

of the seesaw was a discretionary function. Specifically,

the plaintiff[s] [argue] that Ceccolini described a number of maintenance and inspection standards that

employees of the Parks and Recreation Department

were instructed to follow. These instructions, the plaintiff[s] [argue], are in the nature of directives imposing a

ministerial duty, vitiating the defendant’s governmental

immunity and defeating the defendant’s motion for summary judgment.

‘‘Ceccolini testified that the employees of the Parks

and Recreation Department are to ‘maintain the parks,

that’s part of their job, as they go through their day.’

. . . In response to a question asking if there are

‘checklists or guidelines that your employees . . . are

given . . . to give them an idea of the sort of things

they should be looking for,’ Ceccolini answered ‘[t]here

are no checklists, no.’ . . . Ceccolini admitted that

‘[w]ood chips are replaced on a fairly regular basis.’

. . . . However, he augmented that answer by stating

that the Department of Parks and Recreation adds wood

chips ‘[e]very year or so, every year or two we add new

wood chips on an as-needed basis.’ . . . Based on this

testimony, whatever internal standards the Parks and

Recreation Department had were discretionary in

nature.’’ (Citations omitted; emphasis in original; footnotes omitted.)

The plaintiffs suggest on appeal that the court’s analysis as it pertains to the internal standards of the Parks

and Recreation Department conflicts with or overlooks

our decision in Wisniewski v. Darien, 135 Conn. App.

364, 374, 42 A.3d 436 (2012). In particular, the plaintiffs

cite to language in Wisniewski indicating that the testimony of a municipal official concerning the defendant
town’s duty to inspect or maintain its property may be

sufficient to establish that such a duty is ministerial in

nature. Id., 374. Nothing in the trial court’s decision

granting summary judgment in this case conflicts with

that proposition. The present case is distinguishable

from Wisniewski because, unlike in that case, the plaintiffs here have failed to produce testimonial evidence

from which a ministerial duty could be inferred and,

therefore, have failed to raise a genuine issue of material fact.

The plaintiffs in Wisniewski had been injured when

part of a tree that was located on town land and that

had been the subject of several reports to the town as

a potential hazard fell on the car in which the plaintiffs

were travelling. Id., 366–67. A town official testified at

trial that once the town was notified of a problem with

a tree, the response was always the same: to have a

tree warden inspect the tree to determine if there was

a safety concern. Id., 375. The tree warden also testified

‘‘that upon receipt of a complaintregarding a potentially

hazardous tree, he has a nondiscretionary duty to perform an inspection.’’ Id. We concluded that this testimony was sufficient evidence to support the jury’s

finding that the warden had a ministerial duty to inspect

the subject tree. Id. In contrast, in the present case,

there is no indication that the defendant ignored any

requests for inspection of the playground or seesaw,

and the plaintiffs have failed to cite to any portion of

Ceccolini’s deposition, submitted at summary judgment, that indicates that the defendant had any specific

policy in place or had prescribed a nondiscretionary

mannerforinspecting and maintaining its playgrounds.6

On the basis of our plenary review of the pleadings

and submissions of the parties, we conclude that the

plaintiffs have failed to show the existence of a genuine

issue of material fact that would preclude the granting

of summary judgment. Because it was legally and logically correct for the trial court to have concluded that

the acts and omissions alleged in the complaint necessarily were discretionary in nature and, thus, not ministerial; see Grignano v. Milford, supra, 106 Conn. App.

656; see also Evon v. Andrews, 211 Conn. 501, 506–507,

559 A.2d 1131 (1989) (what constitutes reasonable,

proper, or adequate inspection involves exercise of

judgment and,thus, is discretionary in nature);the court

properly determined that the defendant was entitled to

judgment as a matter of law on the defendant’s governmental immunity defense.

B

The plaintiffs also argue on appeal that it contravenes

public policy to grant governmental immunity to a

municipality that ignores, or pretends not to adopt,

basic playground safety requirements intended to protect children. The defendant counters that the plaintiffs’

public policy argument was neverraised in the summary
judgment pleadings or during oral argument on the

motion, and, therefore, we should not considerthe argument on appeal. We agree with the defendant that the

public policy aspect of the plaintiffs’ claim was not

properly preserved for appellate review, and, accordingly, we decline to address it.

‘‘Our appellate courts, as a general practice, will not

review claims made for the first time on appeal. We

repeatedly have held that [a] party cannot present a

case to the trial court on one theory and then seek

appellate relief on a different one . . . . [A]n appellate

court is under no obligation to consider a claim that is

not distinctly raised at the trial level. . . . [B]ecause

our review is limited to matters in the record, we [also]

will not address issues not decided by the trial court.

. . . The requirement that [a] claim be raised distinctly

means that it must be so stated as to bring to the attention of the court the precise matter on which its decision

is being asked. . . . The purpose of our preservation

requirements is to ensure fair notice of a party’s claims

to both the trial court and opposing parties. . . . These

requirements are not simply formalities. They serve to

alert the trial court to potential error while there is still

time for the court to act.’’ (Citations omitted; emphasis

in original; footnote omitted; internal quotation marks

omitted.) White v. Mazda Motor of America, Inc., 313

Conn. 610, 619–20, 99 A.3d 1079 (2014); see also Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224

Conn. 210, 214 n.8, 618 A.2d 25 (1992) (declining to

address public policy argument raised for first time

on appeal).

Having thoroughly reviewed the pleadings and other

submissions before the court, as well as the transcript

of oral argument on the motion for summary judgment,

we conclude that the plaintiffs failed to preserve their

public policy argument by distinctly raising the issue

to the trial court as a basis for denying summary judgment. In their reply brief on appeal, the plaintiffs direct

our attention to portions of their memorandum in opposition to summary judgment and to their motion for

reargument. Although the referenced passages arguably

touch upon the policy arguments that the plaintiffs now

seek to assert on appeal, the passages do not support

a conclusion that the violation of public policy claim

was distinctly raised to the trial court as a basis for

denying summary judgment.

Further, even if we were persuaded that the issue

had been distinctly raised to the trial court, that court

never decided the issue. See Willow Springs Condominium Assn.,Inc. v. Seventh BRT Development Corp.,

245 Conn. 1, 52, 717 A.2d 77 (1998) (appellate courts

‘‘will not address issues not decided by the trial court’’).

The trial court never mentions public policy in its memorandum of decision granting the defendant’s motion

for summary judgment, and to the extent that it was
raised in the plaintiffs’ motion for reargument, the court

denied that motion without comment. Even if the plaintiffs believed that the court overlooked an argument

that they raised in opposition to summary judgment,

they failed to indicate this in their motion for reargument. Because the public policy argument advanced by

the plaintiffs on appeal was never distinctly raised to

or decided by the trial court, we decline to consider it

on appeal.

II

Finally, we turn to the plaintiffs’ claim that the court

improperly rendered summary judgment in favor of the

defendant on their public nuisance count. According to

the plaintiffs,the court incorrectly determined that their

nuisance count did not relate back to the original negligence count and, thus, was barred pursuant to the applicable statute of limitations.7 The plaintiffs do not

dispute the court’s determination that their public nuisance count first appeared in their October 16, 2013

second amended complaint, and that this was well over

four years after Grayson sustained his injuries and,

accordingly, well outside of the applicable limitation

period. Rather, the plaintiffs argue only that the court

improperly rejected their claim that the nuisance count,

as an amendment to the initial complaint, related back

to the original negligence countfor purposes of calculating the limitations period, and that, because the negligence count had been filed within the statute of

limitations, the nuisance count also should have been

deemed timely.8 We disagree.

We begin by setting forth the applicable law as well

as our standard of review. ‘‘Our relation back doctrine

provides that an amendment relates back when the

original complaint has given the party fair notice that

a claim is being asserted stemming from a particular

transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect

parties from having to defend against stale claims. . . .

To relate back to an earlier complaint, the amendment

must arise from a single group of facts. . . . In

determining whether an amendment relates back to an

earlier pleading, we construe pleadings broadly and

realistically, rather than narrowly and technically. . . .

[T]he complaint must be read in its entirety in such a

way as to give effect to the pleading with reference to

the general theory upon which it proceeded, and do

substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial

justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with

it the related proposition that it must not be contorted

in such a way so as to strain the bounds of rational

comprehension. . . . Finally, in the cases in which [our

Supreme Court has] determined that an amendment

does not relate back to an earlier pleading, the amend-
ment presented different issues or depended on different factual circumstances ratherthan merely amplifying

or expanding upon previous allegations.’’ (Internal quotation marks omitted.) J. Wm. Foley, Inc. v. United

Illuminating Co., 158 Conn. App. 27, 63–64, 118 A.3d

573 (2015).

As this court recently indicated in Briere v. Greater

Hartford Orthopedic Group, P.C., 158 Conn. App. 66,

74, 118 A.3d 596, cert. denied, 319 Conn. 910, 123 A.3d

882, cert. granted, 319 Conn. 950, A.3d (2015),

in determining whether an amendment to a complaint

relates back for purposes of applying the statute of

limitations, we will employ a de novo standard of

review. See also Sherman v. Ronco, 294 Conn. 548, 554

n.10, 985 A.2d 1042 (2010) (‘‘the de novo standard of

review is always the applicable standard of review for

resolving whether subsequent amendments to a complaint relate back for purposes of the statute of limitations’’ [emphasis in original]).9

Having reviewed the pleadings, and construing them

broadly and realistically, as we must, we agree with the

trial court’s analysis and conclusion that the nuisance

count fails to relate back to the negligence count. As

the court stated in its memorandum of decision, ‘‘[t]he

plaintiff[s’] allegations of public nuisance are critically

different from the allegations of negligence. In [their]

April 29, 2011 complaint, the plaintiff[s] [allege] the

defendant was negligent in one of more of the following

ways: ‘[i]t failed to place partial car tires or some other

shock absorbing material embedded in the ground

underneath the seats of the seesaw . . . [i]t failed to

use partial car tires or some other shock absorbing

material secured on the underside of the seats of the

seesaw . . . [i]t failed to replace the old-fashioned seesaw with a spring-loaded type of seesaw . . . [i]t failed

to provide the minimum required protective surfacing

of 9 inches of loose filled material under the seesaws

. . . .’ The common thread of these allegations is that

the plaintiff[s’] injuries are the result ofthe failure ofthe

defendant to do something. In contrast, in the second

amended complaint, the plaintiff[s] [allege] that the

defendant ‘committed various positive acts with respect

to the seesaw,’ which positive acts constituted public

nuisance. The positive acts cited by the plaintiff[s]

include: ‘[i]nstalling a type of seesaw at the Quinnipiac

Recreation area that contained overtly hazardous components . . . [i]nstalling seesaws at the Quinnipiac

Recreation area in a location that had insufficient

ground cover or some other form of cushioning in the

seesaw’s fall zone . . . [c]onstructing a fall zone underneath the seesaw in question that was inherently unsafe

for anyone attempting to use the seesaw element.’ . . .

The common thread of these allegations is that the

plaintiff[s’] injuries are due to a positive act of the

defendant.
‘‘The alleged actionable occurrences in the two

claims are inherently conflicting. The actionable occurrence in the negligence claim is the failure to act,

whereas the actionable occurrence in the public nuisance claim is the defendant’s positive act of installing

the seesaw. Indeed, the prima facie public nuisance

claim against municipalities requires a positive act on

the part of the municipality. In the public nuisance

context, [our] Supreme Court has stated that ‘[c]ommon

usage does not equate a failure to act with an act.’ . . .

In the present case, however, the plaintiff[s] [ask] the

court to decide that prior allegations of negligent conduct would have given the defendant ‘fair notice’ . . .

that it would have to defend a public nuisance claim.

The plaintiff[s’] public nuisance claim does not relate

back to the original claim of negligence because the

allegations of the original complaint failed to notify the

defendant that claims based on its allegedly intentional

conduct were imminent.’’ (Citations omitted; emphasis

in original; footnote omitted.)

It is undisputed that the nuisance count was filed

outside of the applicable statute of limitations. Having

determined that the court correctly concluded as a matter of law that the nuisance count did not relate back

to the negligence count, we conclude that the court

properly rendered summary judgment in favor of the

defendant on its statute of limitations defense.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that only Grayson DiMiceli appeals from the trial court’s judgment and he does not pursue in this appeal any derivative claims made by

Eric DiMiceli and Sabrina DiMiceli. Nonetheless, for purposes of clarity and

convenience, we refer in this opinion to the claims advanced on appeal as

made by the plaintiffs collectively, and refer to Grayson DiMiceli as Grayson

where necessary.

2 We note that the defendant later filed a third party complaint impleading

the other child involved in the incident, but it later withdrew that action

prior to the filing of the present appeal.

3 On May 19, 2011, the plaintiffs amended their complaint as of right by

filing a corrected civil summons. The initial summons had listed the parents

as having brought suit only on behalf of their minor child, not as individual plaintiffs.

4 The plaintiffs raise no challenge to that aspect of the court’s decision

in the present appeal.

5 Our Supreme Court has cautioned that ‘‘[s]tatutes that abrogate or modify

governmental immunity are to be strictly construed’’ because if ‘‘a statute

is in derogation of common law or creates a liability where formerly none

existed, it should receive a strict construction and is not to be extended,

modified, repealed or enlarged in its scope by the mechanics of construction.’’ (Internal quotation marks omitted.) Rawling v. New Haven, 206 Conn.

100, 105, 537 A.2d 439 (1988).

6 We note that only certain portions of Ceccolini’s deposition transcript

were submitted as evidence before the trial court. In their arguments on

appeal, the plaintiffs seek to rely on portions of Ceccolini’s deposition that

were never submitted to the trial court as part of the summary judgment

proceedings and, thus, that are not properly before us in reviewing the

court’s decision to render summary judgment.

7 Neither party identifies in their appellate briefs which statute of limitations was applicable to the public nuisance count asserted by the plaintiffs,

nor did they do so in the pleadings before the trial court. In its memorandum

of decision granting summary judgment, the trial court cites to and relies
upon General Statutes § 52-577, which provides that ‘‘[n]o action founded

upon a tort shall be brought but within three years from the date of the

act or omission complained of.’’ Public nuisance is a tort, defined as ‘‘an

unreasonable interference with a right common to the general public.’’ 4

Restatement (Second), Torts, § 821B (1) (1979). We previously have indicated, however, that if a nuisance claim, whether public or private, is predicated on a defendant’s alleged negligence, the nuisance count must be filed

within the two year limitations period set forth in General Statutes § 52-

584. See Sinotte v. Waterbury, 121 Conn. App. 420, 428–31, 995 A.2d 131,

cert. denied, 297 Conn. 92, 996 A.2d 1192 (2010). Section 52-584 provides

in relevant part: ‘‘No action to recover damages for injury to the person, or

to real or personal property, caused by negligence . . . shall be brought

but within two years from the date when the injury is first sustained or

discovered . . . .’’ (Emphasis added.) Neither party, however, challenges

on appeal the trial court’s reliance on § 52-577. Moreover, the public nuisance

count at issue here was filed more than four years after the cause of action

accrued and, thus, was well outside the limitation periods set forth in both

§§ 52-577 and 52-584. Accordingly, for purposes of our analysis, we need

not decide which specific limitation period applies in this particular case.

8 To the extent that the plaintiffs, in their appellate brief, rely on General

Statutes § 52-595 and allege fraudulent concealment as a basis for tolling

the statute of limitations on the nuisance count, we decline to review this

claim. The plaintiffs neither raised this defense in their pleadings nor argued

this point to the trial court. See White v. Mazda Motor of America, Inc.,

supra, 313 Conn. 619–20.

9 We note that, since Sherman was decided, our Supreme Court has,

on at least two occasions, indicated that ‘‘[t]his court previously has not

determined whether, on appeal, the trial court’s application of the relation

back doctrine is subject to an abuse of discretion standard or a de novo

review.’’ Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 660

n.15, 81 A.3d 200 (2013); see also Grenier v. Commissioner of Transportation, 306 Conn. 523, 559, 51 A.3d 367 (2012) (same). Both Austin-Casares

and Grenier cite to Dimmock v. Lawrence & Memorial Hospital, Inc., 286

Conn. 789, 798–800, 945 A.2d 955 (2008), which predated Sherman and in

which the court stated that it was unnecessary to decide the appropriate

standard of review at that time because the party that was seeking the

benefit of the relation back doctrine could not prevail under either standard.

In Sherman, the court explicitly noted that Dimmock had left the precise

standard undecided but that it was now unequivocally deciding that review

was de novo because the interpretation of pleadings is always a question

of law for the court. Sherman v. Ronco, supra, 294 Conn. 554 n.10. Because

neither Austin-Casares nor Grenier mentions Sherman or purports to overrule it with respect to the applicable standard of review, we follow the

express standard announced in Sherman absent some further clarification

by our Supreme Court.